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Checking eligibility to work in Scotland

As an employer in Scotland you must check a person’s eligibility to work in the United Kingdom (UK) before you employ them to work for your organisation. Do not make assumptions about a person’s eligibility to work in the UK. It is a criminal offence to employ a person who does not have the right to work in the UK.

Check eligibility

You must obtain copies of original documentation confirming the person’s right to work in the UK prior to them starting to work for you, regardless of their country of origin.

The Home Office has issued a right to work checklist to help with checking eligibility to work. You can ask the person to provide documents specified on one of two lists identified by the Home Office. Documents must be originals; copies will not be accepted.

List A

Documents on List A verify that either the person is not subject to immigration regulation or that they have no restrictions on living and working the UK. If an applicant presents you with a single document or a combination of documents specified on list A, then they can work for you without any restrictions.

List B

Documents on List B verify that the person has been allowed to enter or remain in the UK for a limited time and/or they have restrictions on their ability to take up employment here such as the type of employment or hours of work they are entitled to carry out.

When someone provides a document from List B (Group 1) you must carry out a further check when that document expires; however best practice is to carry out checks every 12 months. Where someone has provided a document from List B (Group 2) then you must perform a further check in 6 months.

If at the time of checking or rechecking the person has an outstanding application to extend their stay in the UK, you should check with the Home Office to confirm this.

Ensuring documents are genuine and relevant

As an employer you must take all reasonable steps to ensure documents provided by the person are genuine and that they relate to the applicant.

You must check:

The photo is consistent with the appearance of the applicant or employee.

The date of birth is consistent across documents and corresponds with the applicant or employee’s appearance.

The document provided is valid and has not expired.

Any government endorsements (eg stamps, visas etc.) to ensure the individual is permitted to do the specified type of work.

The documents are genuine, not tampered with and belong to the person presenting them.

In the case of two documents with different names on them, ask for a third document to explain this change. For example, a marriage certificate, divorce decree, statutory declaration of name change etc.

Employer Checking Service

Where your employee cannot provide the documents from List A and B, potentially because they have made an application for the Home Office and are waiting for their documents to be returned, you can ask the Home Office to confirm their right to work. The Home Office offer a free checking service for employers and if this confirms the person has a right to work it means that you can employ them for 6 months before carrying out another right to work check.

If you use the Home Office checking service you must keep copies of any correspondence you receive from them.

Make copies

Make copies of the documents provided and sign and date them. Retain copies of the documents securely in the employee’s personnel file for the duration of their employment and for at least 12 months after the employment ends or until a compliance officer confirms they can be destroyed (whichever is the longer period).

In the case of a passport or other travel document, the following parts must be photocopied or scanned:

The document’s front cover and any page containing the holder’s personal details. In particular copy any page that provides details of nationality, photograph, date of birth, signature, date of expiry or biometric details.

Any page containing UK Government endorsements indicating that the employee has an entitlement to be in the UK and is entitled to do the work in question.

All other documents should be copied in their entirety.

A non EU passport

Sometimes an applicant will provide you with a non EU passport which does not contain a visa e.g. an American, Canadian or Hong Kong passport. This does not confirm they are allowed to work. Nationals of these countries do not need a visa to come to the UK as a tourist for 6 months but if they want to remain here for longer periods or to work when they are here they must apply for a visa. If an applicant presents you with one of these passports and they do not contain a visa you should check if they have an alternative visa.

Documents that do not confirm a person is entitled to work in the UK

Certain documents provided may appear to indicate the person has the right to work in the UK. However, these documents should not be accepted as proof of eligibility to work in the UK. The most common documents in this category include:

A National Insurance Number (NI)

The purpose of the National Insurance (NI) number is primarily to monitor an individual’s National Insurance contributions. The NI number is also used as a reference number for individuals within the social security system. It is neither intended nor designed to be a tool for identifying or determining an individual’s immigration status. Not all NI number holders will be entitled to work in the United Kingdom. Therefore, the provision of a NI number in isolation is not acceptable.

Once the overseas migrant worker has been granted the right to work in Scotland, they must apply for a National Insurance number from HM Revenue and Customs (HMRC).

The short birth certificate

This document is vulnerable to forgery. Only a full birth certificate provides valuable background information, absent from the short birth certificate, such as the names of the parents, where they were born, the parent’s occupation, their address at the time of birth and the place where the child was born. All this information may be used to verify personal details if necessary.